Citation Nr: 0812959
Decision Date: 04/18/08 Archive Date: 05/01/08
DOCKET NO. 07-17 340 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an effective date prior to April 13, 2004,
for the assignment of a 20 percent disability rating for
service-connected chronic lumbosacral strain.
2. Entitlement to an effective date prior to August 21,
2006, for the assignment of a 40 percent disability rating
for service-connected chronic thoracolumbar strain, also
claimed as degenerative disc disease.
3. Whether the veteran is entitled to separate compensable
disability ratings for the thoracic and lumbar spine
disabilities.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Orfanoudis, Counsel
INTRODUCTION
The veteran had active service from October 1985 to February
1986.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from rating decisions of the Department of Veterans
Affairs (VA), Regional Office (RO) in St. Petersburg,
Florida.
In October 2007, the veteran testified at a personal hearing
in Washington, DC, over which the undersigned Acting Veterans
Law Judge presided. A transcript of the hearing has been
associated with the veteran's claims file.
During the October 2007 hearing, the veteran raised the issue
of entitlement to service connection for a neck disorder,
secondary to his service-connected chronic thoracolumbar
strain, also claimed as degenerative disc disease. The Board
does not have jurisdiction of this issue as it has not been
adjudicated by the RO. The matter is referred to the RO for
appropriate action.
The case has been advanced on the Board's docket under the
provisions of 38 C.F.R. § 20.900(c).
FINDINGS OF FACT
1. Service connection for chronic lumbosacral strain was
initially granted by rating action dated in September 1986,
at which time a 10 percent disability rating was assigned
effective as of February 28, 1986; a notice of disagreement
was not received to initiate an appeal from that
determination.
2. By rating actions dated in August 1987, September 1987,
July 1990, and August 1990, the RO confirmed and continued
the 10 percent disability rating for the service-connected
chronic lumbosacral strain; a notice of disagreement was not
received to initiate an appeal from any of the
determinations.
3. A formal claim for an increased disability rating for the
service-connected chronic lumbosacral strain was received by
the RO in April 2004.
4. In a decision of the Board dated in July 2006, the
veteran was awarded an increased disability rating of 20
percent for his service-connected chronic lumbosacral strain.
This decision was implemented by rating action of the RO
dated in September 2006 and was made effective as of April
13, 2004, the date of the veteran's claim for an increased
disability rating.
5. By rating action dated in March 2007, the RO awarded an
increased disability rating of 40 percent for the service-
connected chronic thoracolumbar strain, also claimed as
degenerative disc disease, effective as of August 21, 2006,
the date of the veteran's renewed claim for an increased
disability rating.
6. Applicable regulations do not allow for separate
disability ratings for the thoracic strain and the lumbar
strain.
CONCLUSIONS OF LAW
1. The criteria for an effective date prior to April 13,
2004, for the grant of a 20 percent disability rating for
service-connected chronic lumbosacral strain have not been
met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2002 & Supp.
2007); 38 C.F.R. §§ 3.157(b); 3.400 (2007).
2. The criteria for an effective date prior to August 21,
2006, for the grant of a 40 percent disability rating for
service-connected chronic thoracolumbar strain, also claimed
as degenerative disc disease, have not been met. 38 U.S.C.A.
§§ 5103A, 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§
3.157(b); 3.400 (2007).
3. The claim of entitlement to separate disability ratings
for the lumbosacral spine disorder and the thoracic spine
disorder is without legal merit. 38 U.S.C.A. §§ 5103A, 5107,
5110 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic
Code 5237 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§
5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007),
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007),
requires VA to assist a claimant at the time that he or she
files a claim for benefits. As part of this assistance, VA
is required to notify claimants of what they must do to
substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b)(1).
The notice required by the VCAA can be divided into four
elements. Specifically, VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that the claimant is to
provide; (3) that VA will attempt to obtain; and (4) request
that the claimant provide any evidence in his or her
possession that pertains to the claim. Beverly v. Nicholson,
19 Vet. App. 394, 403 (2005) (outlining VCAA notice
requirements).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Specifically, the notice must include notice
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Id. at 486.
VCAA notice errors are presumed prejudicial unless VA shows
that the error did not affect the essential fairness of the
adjudication. To overcome the burden of prejudicial error,
VA must show (1) that any defect was cured by actual
knowledge on the part of the claimant; (2) that a reasonable
person could be expected to understand from the notice what
was needed; or, (3) that a benefit could not have been
awarded as a matter of law. See Sanders v. Nicholson, 487
F.3d 881 (Fed. Cir. 2007).
By letters dated in April 2004, January 2006, September 2006,
October 2006, and January 2007, the veteran was notified of
the evidence not of record that was necessary to substantiate
his claims. He was told what information that he needed to
provide, and what information and evidence that VA would
attempt to obtain. He was, in essence, told to submit all
relevant evidence he had in his possession. Under these
circumstances, the Board finds that the notification
requirements of the VCAA have been satisfied.
With respect to the Dingess requirements, the claimant was
provided with notice of the type of evidence necessary to
establish a disability rating or effective date by the
letters dated in September 2006 and January 2007. Adequate
notice has been provided to the veteran prior to the transfer
and certification of his case to the Board and complied with
the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. §
3.159(b).
Next, the VCAA requires that VA make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate a claim. The dispositive factual matters
pertain to documents that have been on file for many years.
There is no indication in the record that there is any
additional relevant evidence that has not been associated
with the claims file. As the current issues are a legal
matter, there is no need to obtain a VA compensation
examination or medical opinion. 38 U.S.C.A. § 5103A(d); 38
C.F.R. § 3.159(c)(4).
In sum, the Board finds the duty to assist and duty to notify
provisions of the VCAA have been fulfilled and no further
action is necessary under the mandate of the VCAA.
Earlier effective date
The statutory guidelines for the determination of an
effective date of an award of disability compensation are set
forth in 38 U.S.C.A. § 5110. Except as otherwise provided,
the effective date of an evaluation and award of compensation
based on an original claim, a claim reopened after a final
disallowance, or a claim for increase will be the date of
receipt of the claim or the date entitlement arose, whichever
is the later. 38 C.F.R. § 3.400 (2007).
A specific claim in the form prescribed by VA must be filed
in order for benefits to be paid to any individual under the
laws administered by VA. 38 C.F.R. § 3.151(a) (2007). The
term "claim" or "application" means a formal or informal
communication in writing requesting a determination of
entitlement or evidencing a belief of entitlement, to a
benefit. 38 C.F.R. § 3.1(p) (2007). "Date of receipt"
generally means the date on which a claim, information or
evidence was received by VA. 38 C.F.R. § 3.1(r) (2007).
The applicable statutory and regulatory provisions require
that VA look to all communications from the appellant which
may be interpreted as applications or claims - formal and
informal - for benefits. In particular, VA is required to
identify and act on informal claims for benefits. 38
U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); see
Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). An
informal claim must identify the benefit sought. 38 C.F.R. §
3.155(a) (2007).
In cases involving increases in disability compensation, the
effective date will be the earliest date at which it is
factually ascertainable that an increase in disability had
occurred if the claim is received within one year from such
date. Otherwise, the date of receipt of the claim will be
the effective date. 38 C.F.R. § 3.400(o)(2) (2007). A total
disability rating based upon individual unemployability claim
qualifies as a claim for increased disability compensation
and is subject to the specific criteria under 38 U.S.C.A. §
5110(b)(2) (West 2002) and 38 C.F.R. § 3.400(o)(2) (2007).
The date of outpatient or hospital examination will be
accepted as the date of receipt of a claim for increased
benefits when such reports relate to an examination or
treatment of a disability for which service connection was
previously established. 38 C.F.R. § 3.157(b); see Harper v.
Brown, 10 Vet. App. 125, 126 (1997); but see Hazan v. Gober,
10 Vet. App. 511, 518 (1997).
Under 38 C.F.R. § 3.157(b)(1), once a formal claim for
compensation has been allowed or a formal claim for
compensation disallowed for the reason that the service-
connected disability was not compensable in degree, receipt
of outpatient, hospital examination, or admission to a VA or
uniformed services hospital will be accepted as receipt of an
informal claim for an increased evaluation based on the date
of the outpatient treatment, hospital examination, or
admission to a VA or uniformed services hospital.
Chronic lumbosacral strain
The Board has reviewed the evidence of record, including the
following: service medical records; reports of VA
examinations in August 1986, February 1990, June 2004 and May
2006; reports of VA hospitalizations, dated from June 30,
1987 to August 6, 1987, August 29, 1987 to September 4, 1987,
July 1988 to August 1988, and from May 1990 to June 1990; VA
clinical records, dated from 1988 to 2007; and copies certain
treatises submitted by the veteran.
Entitlement to service connection for chronic lumbosacral
strain was initially granted by rating action dated in
September 1986, at which time a 10 percent disability rating
was assigned effective as of February 28, 1986. A notice of
disagreement was not received to initiate an appeal from that
determination.
A VA examination report dated in August 1986 shows that the
veteran reported with back spasms. He was resistant to all
back movements. The diagnosis was chronic lumbar pain; no
objective findings. X-rays of the lumbosacral spine showed
that disc spaces were well maintained.
The 10 percent disability rating was confirmed and continued
by rating decisions of the RO dated in August 1987, September
1987, July 1990, and August 1990.
A VA examination report dated in February 1990 shows that the
lower extremity reflexes were present but weak, and no
sensory change was detected. Straight leg raising was
positive at about 15 degrees, bilaterally. The diagnosis was
chronic lumbosacral strain versus degenerative disc disease,
without radiculopathy. X-rays demonstrated well maintained
intervertebral disc spaces. X-rays of the lumbosacral spine
taken in May 1990 were unremarkable except for mild
degenerative arthritis of the facet joints of L5-S1.
VA outpatient treatment records dated from October 2003 to
August 2004 show that the veteran was able to get onto the
examining table without difficulty. Straight leg raising was
negative for pain; knee jerk and ankle jerk reflexes were 2+
and equal. He had full range of motion of the back without
guarding.
A formal claim for an increased disability rating for the
service-connected chronic lumbosacral strain was received by
the RO in April 2004.
A VA examination report dated in June 2004 shows that the
examiner indicated that it was very difficult to elicit any
information from the veteran as he had been vague in
responding to questions about the time or severity of his
symptoms. It was observed that he walked slowly with a
cane, but that he had no limp or gait changes. He made
minimal effort to follow the examiner's requests during the
examination. He refused to repeat range of motion so that he
could be evaluated for fatigability or increased pain or
change in range of motion. Physical examination did reveal
10 degrees of left lateral flexion and 20 degrees of right
lateral flexion. He had 5 degrees of forward flexion and was
unwilling to attempt to flex any further. On straight leg
raise testing, he was unwilling to raise his leg more than
one inch off the examining table. However, his passive
straight leg raise was negative to 70 degrees. With the
veteran distracted, it was determined that his deep tendon
reflexes were 2+ and equal, bilaterally. X-rays of the
lumbosacral spine were normal. The diagnosis was mild lumbar
strain. According to the examiner, the findings were
inconclusive and inaccurate, as the veteran's physical
examination findings and radiological findings did not
correlate.
A magnetic resonance imaging (MRI) study of the lumbar spine
dated in September 2004 shows diffuse disc bulging at L4-5.
No nerve root impingement was seen. Minimal disc bulging at
T11-12 was also seen on MRI of the thoracic spine.
A VA examination report dated in May 2006 shows that the
veteran walked with a cane. There was bilateral negative
straight leg raise. Spasm was detected in the upper lumbar
spine. There was loss of lumbar lordosis. Gait was slow and
mildly antalgic. Lumbar spine flexion was zero to 60
degrees; extension was zero to 30 degrees; lateral flexion
was zero to 26 degrees, bilaterally; and rotation was zero to
30 degrees, bilaterally. Deep tendon reflexes were 2+ and
symmetrical at the knees and ankles, bilaterally. Motor
strength was 5/5, bilaterally. Lower extremity sensation was
intact, bilaterally. The thoracic spine was nontender to
palpation. The examiner indicated that after review of the
claims file, including the X-ray reports at the time of the
original injury and over the years afterwards, the assessment
was that the veteran had sustained a muscle strain while in
service. The examiner added that the veteran's disc disease
was not caused by muscle strain, and that typically, muscle
strains resolve. The examiner concluded that it was unlikely
that the muscle strain in 1985 caused current disc findings
on MRI about 20 years later. It would be a resort to
speculation to state that the veteran's current disc changes
were due to muscle strain 20 years earlier.
In a decision of the Board dated in July 2006, the veteran
was awarded an increased disability rating of 20 percent for
his service-connected chronic lumbosacral strain. This
decision was implemented by rating action of the RO dated in
September 2006 and was made effective as of April 13, 2004,
the date of the veteran's claim for an increased disability
rating.
In August 2006, the veteran submitted a new claim for an
increased disability rating for his service-connected chronic
lumbosacral strain.
A VA outpatient treatment record dated in January 2007 shows
that the veteran reported continued lumbar pain. He
described difficulty sleeping as a result of his back
symptoms. He indicated that he was using a cane all the
time, and that his balance was off resulting in occasional
falls. Physical examination revealed 30 degrees of flexion
at the thoracolumbar junction before pain would stop further
bending. He was able to flex chin to chest, and angle was
greater than 30 degrees. The impression, in pertinent part,
was back pain and degenerative disc disease.
By rating action dated in March 2007, the RO awarded an
increased disability rating of 40 percent for the service-
connected chronic thoracolumbar strain, also claimed as
degenerative disc disease, effective as of August 21, 2006,
the date of the veteran's reopened claim for an increased
disability rating.
During his October 2007 hearing, the veteran asserted that
his current 40 percent disability rating should be effective
as of the date of his original claim of service connection in
1986 as his symptoms have been consistent since that time.
He also asserted that the symptoms associated with his
thoracic and lumbar spines should be rated separately, and
that he should have been awarded a separate disability rating
for arthritis of the thoracolumbar spine.
An effective date prior to April 13, 2004, for the assignment
of a 20 percent disability rating for service-connected
chronic lumbosacral strain
As noted above, prior to the veteran's April 2004 claim for
an increased disability rating, the 10 percent disability
rating was most recently confirmed and continued by rating
decision of the RO dated in August 1990. The veteran did not
appeal this decision, thus it became final. 38 U.S.C.A. §
7105(c) (2007).
In April 2004, the veteran filed a claim for an increased
disability rating for the service-connected chronic
lumbosacral strain. In support of his claim, he submitted VA
outpatient treatment records dated from October 2003 to
August 2004 which had shown that he was able to get onto the
examining table without difficulty, that straight leg raising
was negative for pain, and that he had full range of motion
of the back without guarding. He also underwent VA
examinations in June 2004 and May 2006, and submitted the
September 2004 MRI study.
In a decision of the Board dated in July 2006, the veteran
was awarded an increased disability rating of 20 percent for
his service-connected chronic lumbosacral strain. This
decision was implemented by rating action of the RO dated in
September 2006 and was made effective as of April 13, 2004,
the date of the veteran's renewed claim for an increased
disability rating. The RO reasoned that upon reviewing the
foregoing evidence, as it was not factually ascertainable
that the veteran had exhibited an increase in his disability
within one year of receipt of the reopened claim, the
effective date would be the date of his renewed claim which
was in April 2004. See 38 C.F.R. § 3.400(o)(2). There was
no other competent medical evidence of record showing
symptoms or findings that met the criteria for a 20 percent
disability rating that were dated within the one-year period
prior to April 2004.
The Board acknowledges the veteran's contention that he has
been suffering from an increase in his low back disability
for a number of years. However, if the increase became
ascertainable more than one year prior to the date of receipt
of the reopened claim, then the proper effective date would
still be the date of the claim which in this case was in
April 2004. See generally Harper v. Brown, 10 Vet. App. 125
(1997). In other words, if the veteran is correct in saying
that an increase took place prior to April 2004, then under
applicable law VA would not be able to assign an effective
date prior to that date of claim since he had not filed a
claim for an increase, either formal or informal, prior to
that time, following the final August 1990 RO decision.
The only way the veteran could attempt to overcome the
finality of the August 1990 decision in an attempt to gain an
earlier effective date, is to request a revision of that
decision based on clear and unmistakable error (CUE) or by a
claim to reopen based on new and material evidence. See Cook
v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc);
see also 38 U.S.C. § 5109A(a) ("a decision by the Secretary .
. . is subject to revision on the grounds of clear and
unmistakable error. If evidence establishes the error, the
prior decision shall be reversed or revised."); 38 U.S.C. §
5108 ("if new and material evidence is presented or secured
with respect to a claim which has been disallowed, the
Secretary shall reopen the claim and review the former
disposition of the claim."); Andrews v. Nicholson, 421 F.3d
1278, 1281 (Fed. Cir. 2005). The veteran has done neither.
Since the August 1990 RO decision is final, the decision is
not subject to revision in the absence of CUE in the
decision. 38 U.S.C.A. §§ 7105, 5109A; see Rudd v. Nicholson,
20 Vet. App. 296 (2006) (finding that only a request for
revision based on CUE could result in the assignment of an
effective date earlier than the date of a final decision).
CUE in any of the prior RO decisions has not been alleged.
There is no legal basis for making the effective date of the
20 percent disability rating for chronic lumbosacral strain
retroactive to a date prior to the currently assigned April
13, 2004, as the veteran seeks.
In the present case, the RO has found that an increase in
severity within one year of the date of the renewed claim was
not shown, and an effective date was assigned accordingly.
The Board agrees with that finding, and there is no basis for
an effective date prior to April 13, 2004.
An effective date prior to August 21, 2006, for the
assignment
of a 40 percent disability rating for service-connected
chronic thoracolumbar strain
Following the final July 2006 decision of the Board, in
August 2006, the veteran submitted a renewed claim for an
increased disability rating for his service-connected chronic
lumbosacral strain.
In support of his claim, he submitted VA outpatient treatment
records dated in January 2007 which showed that he had
continued lumbar pain. He described difficulty sleeping as a
result of his back symptoms. He indicated using a cane all
the time, and that his balance was off resulting in
occasional falls. Physical examination revealed 30 degrees
of flexion at the thoracolumbar junction before pain would
stop further bending. He was able to flex chin to chest, and
angle was greater than 30 degrees. The impression, in
pertinent part, was back pain and degenerative disc disease.
By rating action dated in March 2007, the RO awarded an
increased disability rating of 40 percent for the service-
connected chronic thoracolumbar strain, effective as of
August 21, 2006, the date of the veteran's reopened claim for
an increased disability rating.
As noted above, in this case, the veteran's request to
establish an effective date prior to August 21, 2006, amounts
to a request to disregard the law regarding finality. The
July 2006 decision of Board awarding an increased disability
rating was final. The veteran did not appeal that decision.
As noted above, the only way the veteran could attempt to
overcome the finality of that decision, in an attempt to gain
an earlier effective date, is to request a revision of that
decision based on CUE or by a claim to reopen based on new
and material evidence. See Cook, 318 F.3d at 1339; Andrews,
421 F.3d at 1281; see also 38 U.S.C. §§ 5109A(a), 5108 (West
2002 & Supp. 2007). The veteran has done neither.
Since the July 2006 decision of Board is final, the decision
is not subject to revision in the absence of CUE in the
decision. 38 U.S.C.A. §§ 7104, 5109A; see Rudd, 20 Vet. App.
at 296. CUE in any of the prior RO or Board decisions has
not been alleged. There is no legal basis for making the
effective date of the current 40 percent disability rating
for chronic lumbosacral strain retroactive to a date prior to
the currently assigned August 21, 2006, as the veteran seeks.
The July 2006 final Board decision bars such an effective
date. See 38 U.S.C.A. § 7104. Thus, the attempt to overcome
finality in raising a freestanding claim must be denied.
A separate disability rating for thoracic and lumbar spine
disabilities
The veteran submitted a claim for service connection for a
thoracic spine disorder in August 2006. He also submitted a
claim for degenerative disc disease of both the lumbar spine
and thoracic spine in October 2006.
As indicated above, the veteran is already service-connected
for a chronic lumbosacral strain which has been rated
pursuant to Diagnostic Code 5237 which provides the rating
criteria for a lumbosacral or cervical strain. Effective
September 26, 2003, a lumbosacral strain is rated under the
general rating formula for diseases and injuries of the
spine. In pertinent part, under the general rating formula,
a 40 percent disability rating will be assigned for forward
flexion of the thoracolumbar spine of 30 degrees or less; or,
favorable ankylosis of the entire thoracolumbar spine. A 50
percent disability rating is assigned for unfavorable
ankylosis of the entire thoracolumbar spine. A 100 percent
disability rating is assigned for unfavorable ankylosis of
the entire spine. See 38 C.F.R. § 4.71a, Diagnostic Code
5237 (2007).
The applicable diagnostic code provision for a thoracic spine
disability is the same as that for the already service-
connected lumbosacral spine disability, as the thoracolumbar
spine as a whole is contemplated under Diagnostic Code 5237.
The thoracolumbar spine is considered as one spinal segment.
There is no entitlement under the law to separate disability
ratings for the lumbar spine and the thoracic spine. Range
of motion is based on the entire thoracolumbar spine. As the
veteran's claim associated with a thoracic spine disorder was
received by the RO in August 2006, the current version of the
regulations are applicable, and the law does not allow for a
separate disability rating. Therefore, the claim of
entitlement to a separate disability rating for a lumbosacral
spine disorder and a thoracic spine disorder under Diagnostic
Code 5237 lacks legal merit, and must be denied as matter of
law. See Sabonis v. Brown, 6 Vet. App. 426 (1994).
The Board notes that the veteran's service connected back
disorder is not shown to have resulted in intervertebral disk
syndrome, so as to warrant evaluation under the Formula for
Rating Intervertebral Disc Syndrome Based on Incapacitating
Episodes. As to the asserted entitlement to a separate
disability rating for disk disease of the thoracolumbar
spine, the May 2006 VA examination report concluded that it
was unlikely that a muscle strain in 1985 caused his current
disk findings on MRI dated 20 years later, and that it would
be a resort to speculation to state that his current disc
changes were due to muscle strain 20 years earlier.
The Board notes that the RO interpreted the January 2007 VA
outpatient treatment record as supporting a relationship
between the veteran's lumbosacral strain and his degenerative
disc disease. Even if this were the case, his thoracolumbar
spine with degenerative disc disease would be rated using the
criteria under Diagnostic Code 5003 which provides for
degenerative arthritis. Under this diagnostic code
provision, degenerative arthritis established by X-ray is
rated on the basis of limitation of motion under the
appropriate diagnostic code for specific joints involved.
The veteran's service-connected lumbosacral strain has been
evaluated based on the range of motion of his thoracolumbar
spine which was shown to be limited to 30 degrees in January
2007. As stated, the spinal segment of the thoracolumbar
spine is considered as one in the determination of range of
motion.
The currently assigned 40 percent disability rating is
appropriate for range of motion limited to 30 degrees. A
higher disability rating of 60 percent would not be warranted
unless there were favorable ankylosis of the cervical and
thoracic spine or intervertebral disc syndrome with
incapacitating episodes of at least 6 weeks during the last
twelve months.
The Board finds that the veteran's arthritis has already been
contemplated by the assigned disability rating for his
service-connected chronic lumbosacral strain. To rate the
disorder separately would result in impermissible
"pyramiding." As such, entitlement to separate disability
ratings for the thoracic spine, lumbar spine and degenerative
disc disease is denied.
(CONTINUED ON NEXT PAGE)
ORDER
1. An effective date prior to April 13, 2004, for the
assignment of a 20 percent disability rating for service-
connected chronic lumbosacral strain, is denied.
2. An effective date prior to August 21, 2006, for the
assignment of a 40 percent disability rating for service-
connected chronic thoracolumbar strain, also claimed as
degenerative disc disease, is denied.
3. Entitlement to a separate disability rating for thoracic
and lumbar spine disabilities is denied.
____________________________________________
MICHAEL MARTIN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs